Deputy Commissioner of Taxation v Contract Synergies Administration Pty Ltd

REASONS FOR JUDGMENT 1 This matter was referred to me this morning from the Registrar's company list because an issue arose on the application to wind up the defendant company. The issue which arose was whether the creditors' originating process had been served in accordance with the provisions of s 109X of the Corporations Act 2001 (Cth) ("the Corporations Act"). Section 109X(1)(a) provides that, for the purpose of any law, a document may be served on a company by leaving it at, or posting it to, the company's registered office. 2 The evidence discloses that, on 13 May 2011, the plaintiff caused the originating process and supporting documents to be sent by pre-paid post to the registered office of the defendant company on 13 May 2011. The registered office, as shown in the records of the Australian Securities and Investment Commission ("ASIC"), was Hyde and Associates, Level 1, Telopea Avenue, Homebush. 3 However, on 24 May 2011, the letter enclosing the originating process was returned to the plaintiff's solicitors with the following words marked on the letter by Australia Post: "Undelivered mail, return to GPO Box 4132, Sydney, New South Wales 2000". The envelope was also endorsed with the following words in handwriting: "Left three years ago". 4 On that same day, the plaintiff's solicitors sent by pre-paid post the originating process and supporting documents to the principal place of business of the company as noted in ASIC's records. The principal place of business was shown as located at an address in Seven Hills. However, that envelope was similarly returned as undelivered mail to the plaintiff's solicitors with a notation on the envelope stating: "Left address". 5 It seems to me that the relevant authorities establish that in the circumstances set out above, service by post has been established. The position is fully explained by Debelle J in Dwyer v Canon Australia Pty Ltd [2007] SASC 100. His Honour, after setting out the provisions of s 109X of the Corporations Act, referred to s 29 of the Acts Interpretation Act 1901 (Cth) ("Acts Interpretation Act"), which applies to the Corporations Act by operation of s 5C of the Corporations Act. 6 Section 29(1) of the Acts Interpretation Act defines service by post. The section states that: Where an Act authorizes or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post. 7 Debelle J went on to say at [6] that, in order to be able to establish service by post upon a company, it is therefore necessary to prove that the letter was: Properly addressed; Pre-paid; Posted as a letter; and Sent to the registered office of the company. 8 His Honour observed that service by post will not be established unless each of those facts have been proved. I observe that, in this case, each of the criteria stated above has been proved on the evidence. 9 Debelle J went on at [8]-[9] to point to a fundamental distinction which is relevant to determining whether or not service has been or is taken to have been validly effected in accordance with the provisions referred to above. The distinction which is to be drawn is between non-delivery of a document and non-receipt of it. Debelle J referred to the decision of the High Court in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 96 ("Fancourt") and pointed out that, in order to avoid the effect of s 29(1), it is necessary to prove that the documents were not delivered. 10 It is important to observe that the High Court in Fancourt said that delivery may be different from receipt by the intended recipient and provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post. 11 In Fancourt, there was no evidence of non-delivery nor is there evidence of non-delivery in the present case. As Debelle J said at [9], it is not sufficient to prove non-receipt if it is intended to seek to establish that service by post has not been effected. It is necessary to establish more than a positive fact of mere non-receipt by proving, for example, that the Post Office has returned the documents. That was the case in the decision of von Doussa J in Re Rustic Homes Pty Ltd (1988) 49 SASR 41 ("Re Rustic Homes"). 12 There, his Honour observed at page 41 that the summons for the winding up of the company was returned to the plaintiff's solicitors by Australia Post as unclaimed. It seems to me that this explains the reason why von Doussa J came to the view that the documents which had been posted and returned by the postal authorities undelivered showed that service had not occurred. That is not the position in the present case. 13 The decision of Austin J in Perpetual Nominees v Masri Apartments; Perpetual Nominees v Aus Constructions (2004) 183 FLR 142, is to the same effect. In that case, the plaintiff's solicitors made a search of the records of ASIC which disclosed the address of the registered office of the company. The solicitors then caused a statutory demand addressed to the company at the registered office recorded in the records of ASIC to be posted by pre-paid post, together with other relevant documents. 14 However, shortly before the dispatch of the documents, the company filed a form of notice of change of address of registered office but it was not processed by ASIC until after the solicitors for the plaintiff had dispatched the summons. Austin J pointed out, at [17], that under s 142(2) of the Corporations Act, a company is required to lodge a notice of change of address of its registered office with ASIC, not later than 28 days after the date on which the change occurs. It is, by virtue of ss 142(2) and 142(2A), an offence of strict liability for the company to fail to do so. 15 Austin J said at [21] that, in his view, the statutory demand was properly served on the company. He said that for service to be effected by post under s 109X(1), the document must be posted to the company's registered office and that this requirement is satisfied if the address on the envelope was the company's registered office at the point of time when the letter entered the mailing system. His Honour referred to s 29(1) of the Acts Interpretation Act which deems service to be effected by properly addressing, pre-paying and posting the documents as a letter. 16 That is the position which occurred in the present case. Austin J said at [23] that s 29(1) of the Acts Interpretation Act would permit the company to prove that a demand, properly addressed to its registered office, was not delivered in the ordinary course of post. The evidence in that case only established non-receipt which is not sufficient to prove non-delivery. His Honour cited a number of authorities in support of that proposition, including Fancourt and Re Rustic Homes. 17 This, again, seems to me to provide strong support for the proposition that, in the present case, all that I can infer from the return of the envelope was that the originating process was not received by the company. However that does not establish non-delivery because the position here does not establish that, as in, for example Re Rustic Homes, the petition was returned by Australia Post as unclaimed. Here the handwritten notation on the envelope shows that it was delivered to the address stated. Australia Post's notation "undelivered mail" means only that the envelope was not received by the company. 18 The elements of non-receipt and non-delivery are also illustrated in the recent decision of Burley J in Fletchers' Freighters Pty Ltd (in liquidation) v Fresh Express Australia Pty Ltd [2011] SASC 45 ("Fletchers' Freighters"). What occurred in that case was that the records of ASIC wrongly stated the registered office of the company. Service was purportedly effected by sending the originating process by pre-paid post to the registered office as stated in ASIC's records, whereas in truth, the registered office of the company was at another address. In those circumstances, the evidence demonstrated not merely non-receipt but also non-delivery. For those reasons, the decision in Fletchers' Freighters does not have any application to the present case. 19 For these reasons, I am satisfied that service has been effected in accordance with s 109X(1)(a) of the Corporations Act and s 29(1) of the Acts Interpretation Act. 20 However, I should add that I am reinforced in my view that I should make a winding up order today by evidence put before me by the plaintiff's solicitor. The evidence shows that the solicitor, Mr Bavin, contacted a director of the defendant company by telephone and that she informed Mr Bavin that the defendant company did not have any assets and has not traded for a long period of time. 21 Mr Bavin asked whether he could, in those circumstances, tell the court that he had spoken to her and that, although she had not seen the petition and supporting documents, even if she had received them, she would not have opposed the winding up order being made and a liquidator being appointed. The director, Mrs O'Gorman, said that she agreed that Mr Bavin could make that statement to me today. I am satisfied that all of the other necessary formalities have been complied with and I propose to make an order for the winding up of the defendant company. 22 I will make orders for the winding up of the company. The company is being wound up in insolvency and I will make orders in terms of the short minutes of order handed to me by Mr Bavin. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.